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Diminish defenses on preexisting conditions.

Obtain a client's complete medical history early in the case so you can anticipate defenses related to preexisting conditions. The defense often claims that symptoms of a preexisting condition cannot be distinguished from those of the injury that the defendant's behavior caused.

Combat this defense during voir dire by securing a commitment from jurors that they will not assess damages based on preexisting conditions. Use your client's testimony and that of his or her physicians to identify which symptoms are associated with which conditions.

When appropriate, ask the treating physicians to explain how the injuries that the defendant caused may have worsened your client's conditions. In many jurisdictions, you can ask for an instruction on the "thin skull doctrine," which states that a jury cannot lessen a damages award because a plaintiff's physical frailty made him or her susceptible to injury. The doctrine applies even if the defendant could not foresee that the plaintiff's frailty would worsen the injury.

Timothy A. Rowe

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Title Annotation:Good Counsel
Author:Rowe, Timothy A.
Date:Jun 1, 2007
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